United States v. Castellano-Benitez

United States District Court, D. Nebraska

August 10, 2017

UNITED STATES OF AMERICA, Plaintiff,v.ALEXANDER CASTELLANO-BENITEZ, Defendant.

MEMORANDUM AND ORDER

John
M. Gerrard United States District Judge

Following
a 4-day jury trial, the defendant, Alexander
Castellano-Benitez, was convicted of possessing with intent
to distribute 500 grams or more of a mixture or substance
containing methamphetamine. The defendant now moves for a new
trial pursuant to Fed. R. Crim. P. 33. For the reasons
explained below, that motion will be denied.

BACKGROUND

The
defendant was arrested in September 2015 in a Hastings,
Nebraska motel room. Upon searching the room, authorities
found methamphetamine and various drug-related paraphernalia,
including baggies, scissors, and a scale. Also arrested was
Yulio Cervino-Hernandez, who had travelled to Hastings with
the defendant from Tampa, Florida. Both men were charged with
possessing with the intent to distribute 500 grams or more of
methamphetamine. Cervino-Hernandez pled guilty to the
offense, but the defendant proceeded to trial.

The
government's theory of the case, generally speaking, was
that the defendant had stolen the methamphetamine from a drug
cartel in Texas. He then transported the drugs from Texas to
Florida, and then from Florida to Nebraska, for distribution.
Along the way, the defendant recruited Cervino-Hernandez, who
had agreed to drive the defendant (and the drugs) from Tampa
to Hastings. The defendant admitted travelling with
Cervino-Hernandez, but denied knowing about the
methamphetamine.

The
government's case relied in part on testimony from two
cooperating witnesses. The first was Cervino-Hernandez, who
largely confirmed the government's account. He testified,
for example, about how the defendant had concealed the
methamphetamine in the air vents and battery of his truck
before leaving for Nebraska. He also described how the two
men, upon arriving in Hastings, moved the drugs from the
truck to their motel room. And he explained the
defendant's role in an initial drug transaction, in which
the men sold over an ounce of methamphetamine in or around
Grand Island.

The
government also called Yunior Flores-Veliz, who had pled
guilty to a separate, but related, drug offense. He testified
to phone conversations that he had with the defendant in
October 2015, when the defendant was awaiting trial in the
Saline County Jail. According to Flores-Veliz, the defendant,
while incarcerated, encouraged him to transport drugs from
Florida to Nebraska for distribution. Needing money,
Flores-Veliz obliged-driving over 2 kilograms of
methamphetamine from Tampa to Grand Island. Flores-Veliz was
arrested with the drugs soon after arriving in the state, and
he, too, was placed in the Saline County Jail.

The
defense characterized this testimony as inconsistent and
untrue. It suggested that the witnesses had a motive to lie
based on the possibility that their own sentences would be
reduced because of their cooperation. And it noted that both
Cervino-Hernandez and Flores-Veliz were angry that the
defendant had been released from the county jail in December
2015 to await trial, while they remained behind bars. So, the
defense argued, the cooperating witnesses might have
coordinated their testimony while in the Saline County Jail
in an effort to shift the blame to the defendant and
implicate him.

One of
the issues, then, was whether Cervino-Hernandez and
Flores-Veliz had the opportunity and means to coordinate
their testimony as the defense had suggested. The government
claimed they did not, noting that the jail had intentionally
segregated the men "to prevent them from coming up with
a story." But the defense, through cross-examination,
questioned the effectiveness of those efforts. It suggested
that inmates, regardless of their classification, can
communicate with each other through informal (and
unauthorized) means. And when it posed that possibility at
trial to the jail's administrator, Adam Drake, he largely
agreed-noting that if inmates want to communicate,
"I'm sure [they] can find a way."

But the
defense did not present evidence that the two men were housed
in the same unit or cell block. That was due in part, the
defense now argues, to information it received from the
government in pretrial discovery. Defense counsel had
requested information about whether the defendants had been
housed together, so in September 2016, the government emailed
the defense a report it had compiled based on a review of
Saline County's transportation and housing logs. Filing
174-1 at 1-3. That report concluded that Cervino-Hernandez
and Flores-Veliz "were never housed or together at any
time [during their incarceration] in the Saline County
Jail." Filing 174-1 at 3. Then, in December, the
government's attorney emailed defense counsel about
possible stipulations for trial. Referring to the
government's September report, the U.S. Attorney wrote:

In addition to the stipulations we discussed on Monday . . .
I was hoping you would be, since I went through the trouble
to get the information at your request, [willing] to
stipulate to the agent testifying that he checked with the
federal detention officials and as far as they could tell
Yulio Cervino-Hernandez and [Yunior Flores-Veliz] never
crossed paths in their custody.

Filing 170-1 at 2 (emphasis added).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;However,
it is now clear that the government&#39;s representations
were inaccurate, or, at the least, incomplete. Indeed, while
the witnesses were not housed together in Saline
County, the government's September report, if carefully
examined, would show that Cervino-Hernandez and Flores-Veliz
were transported to a different facility in Dawson County in
May and July 2016. And there is now evidence that the two
witnesses, while incarcerated in Dawson ...

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